On September 11, 2014, the Occupational Safety and Health Administration (“OSHA”) released a new rule which will significantly increase the type of injuries that must be reported to the agency. The new rule maintains the requirement for employers to notify OSHA of any workplace fatalities within eight (8) hours. Now, in addition, employers are required to report all hospitalizations, plus any injuries that result in amputations or loss of an eye within twenty-four (24) hours. According to OSHA Administrator David Michaels, the expanded reporting requirements for severe injuries will result in employers being “more likely to take the steps necessary to better protect the lives and limbs of their employees.” Michaels said OSHA will use the data they receive to better target industries that need to do more to prevent injuries. More >

Earlier this week, the standard established by the NLRB in Specialty Healthcare was discussed. As a quick review, the Specialty Healthcare decision made it easier for small collective bargaining groups known as “micro-units” to form in the workplace. These micro-units are easier to unionize, and the employer is left with the burden of showing why excluded employees of the proposed unit should be included. Specialty Healthcare was decided by the NLRB in 2011 and affirmed by the Sixth Circuit in 2013, but it was not until this summer that employers learned how the NLRB would apply this decision to other industries. More >

Employment law attorneys are abuzz with talk of “micro-units.” This term first surfaced in 2011, and has garnered attention once again in the wake of two recent decisions from the National Labor Relations Board (“NLRB”). So, what is a micro-unit, exactly, and why should employers care about this legal catchphrase? More >

Just yesterday, Business First and McBrayer sponsored the second part of a two-part seminar entitled “Lessons in Workplace Liability.” Amy D. Cubbage and Cynthia L. Effinger, McBrayer Employment Law attorneys, explained to attendees how job descriptions and performance evaluations can be used as powerful legal tools to limit liability for discrimination-based claims. If you were not able to attend the seminar, but would still like a copy of the materials, contact McBrayer’s Marketing Director, Elizabeth Bagby at ebagby@mcbrayerfirm.com or 859-231-8780. We have also summarized some of the information shared by the presenters below. More >

As part of Business First's Labor and Employment Seminar Series, McBrayer attorneys explain how job descriptions and performance reviews can be a great tool to protect against employer liability risks. Get real-world advice from speaker Cynthia Effinger on how to effectively write these documents in a non-discriminatory manner and rely on them when faced with a discrimination claim.

Cynthia L. Effinger, an Associate of the firm, joined McBrayer law in 2012. Ms. Effinger has a broad range of legal experience gained through 13 years of practice throughout the Commonwealth of Kentucky where her clients conduct business. Ms. Effinger’s practice is concentrated in the areas of employment law and commercial litigation. She also has experience with First Amendment litigation, securities litigation and complex litigation. Ms. Effinger can be reached at ceffinger@mcbrayerfirm.com or at (502) 327-5400, ext. 2316.

The National Labor Relation Board (“NLRB”) recently issued its latest decision on social media issues and employer policies. In Triple Play Sports Bar & Grille, 361 NLRB No. 31 (2014), the NLRB ruled that a Facebook discussion regarding an employer’s tax withholding calculations and an employee’s “like” of the discussion were protected by the National Labor Relations Act (“NLRA”). While the NLRB has long been concerned with protecting employees’ rights on social media, this marks the first time that the NLRB has held that merely clicking a “like” button can be protected, concerted activity.

The incident arose when a former Triple Play employee posted the following status update on Facebook, “Maybe someone should do the owners of Triple Play a favor and buy it from them. They can’t even do the tax paperwork correctly!!! Now I OWE money…Wtf!!!” Several Facebook friends posted comments in response, including two of Triple Play’s then-current employees. One employee commented, “I owe too. Such an asshole.” A second employee liked the former employee’s status update, but posted no comment. When Triple Play discovered that two of its employees had participated in the Facebook discussion, it terminated them both. The employees sued for wrongful discharge. The administrative law judge (“ALJ”) found that the Facebook discussion was concerted activity because it involved current employees engaged in an ongoing sequence of discussions about employment conditions, specifically, the employer's calculation of tax withholdings.

On appeal, the NLRB upheld the judge’s opinion. The NLRB then underwent a detailed analysis of the “like” action, “We interpret [the] ‘Like’ solely as an expression of approval of the initial status update. Had [he] wished to express approval of any of the additional comments emanating from the initial status update, he could have ‘Liked’ them individually. Determining what the “like” was in reference to was important because the employer alleged that the follow-up comment was defamatory and not protected pursuant to Section 7. Triple Play suggests that the NLRB will analyze individual "likes" to determine the specific post for which it demonstrates support.

The NLRB also went a step further by finding that Triple Play’s “Internet/blogging” policy was unlawful because it was aimed at preventing employees from saying negative statements online, and therefore was an effort to chill protected, concerted activity.

It cannot be emphasized enough that employers should consult with counsel before firing an employee for allegedly defamatory or inappropriate speech that takes place on social network sites. In addition, it is critical that employers work with counsel to draft an appropriate social media policy that can pass muster under the NLRB’s highly subjective and challenging standard.

The U.S. Equal Employment Opportunity Commission (“EEOC”) has filed its first lawsuit directly challenging a wellness program under the Americans with Disability Act (“ADA”). The case, EEOC v. Orion Energy Systems, was filed in the U.S. District Court for the Eastern District of Wisconsin.

The EEOC is alleging that Orion penalized an employee in 2009 after she declined to participate in the company’s wellness program by requiring her to pay her entire health care insurance premium, in addition to a $50-a-month nonparticipation penalty. Shortly thereafter, the employee was fired – a move that the EEOC believes was retaliatory. Further, the agency contends, Orion required medical examinations and made disability-related inquiries that were not job-related or consistent with business necessity.

The ADA limits the circumstances under which an employer may require physical examinations or answers to medical inquiries. Examinations and inquiries are permissible, but only if participation in an employee wellness program plan is voluntary. Orion’s program, according to the EEOC, was not voluntary because it penalized the employee when she declined to participate.

Employers who want to implement an employee wellness plan must ensure that the plan is compliant not only with ADA requirements, but also with the Affordable Care Act (“ACA”). See more on the ACA’s requirements, which are relatively new, here and here.

The EEOC’s press release announcing the suit states that 94% of employers with over 200 workers offer some sort of wellness plan, as do 63% of smaller employers. That means that there is a lot of potential for liability when it comes to wellness plans. If you have questions about yours or would like to consult with legal counsel before implementing a program, contact McBrayer’s Employment Law attorneys today.

Preston Clark Worley is an associate with McBrayer law. Mr. Worley concentrates his practice in employment law, land development, telecommunications, real estate and affordable housing. He is located in the firm’s Lexington office and can be reached at pworley@mcbrayerfirm.com or at (859) 231-8780, ext. 1201.

This article is intended as a summary of state and federal law and does not constitute legal advice.